(4)

the decision of an administrative agency warrants affirmance under the standard of review in the statute authorizing the petition for review; or (5) a judgment or decision has been entered without an error of law. (b) Separate Judgment. The clerk of court will not prepare a separate judgment when a case is disposed of by order without opinion. The order of the court serves as the judgment when entered. FEDERAL RULE OF APPELLATE PROCEDURE 37 Interest on Judgment (a) When the Court Affirms. Unless the law provides otherwise, if a money judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date when the district court’s judgment was entered. (b) When the Court Reverses. If the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest. FEDERAL RULE OF APPELLATE PROCEDURE 38 Frivolous Appeal If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee. Federal Circuit Rules of Practice (December 1, 2025) Page 162 (Return to Table of Contents) PRACTICE NOTES TO RULE 38 Warning Against Filing or Proceeding with a Frivolous Appeal or Petition. The court’s early decision in Asberry v. United States, 692 F.2d. 1378 (Fed. Cir. 1982), established the policy of enforcing this rule vigorously. Since then, many precedential opinions have included sanctions under the rule. Damages, double costs, and attorney fees, singly or in varying combinations, have been imposed on counsel, parties, and unrepresented petitioners for pursuing frivolous appeals. Challenging a Frivolous Appeal. If an appellee or respondent considers an appeal or petition frivolous, the appellee or respondent must file a separate motion with that allegation. The assertion that an appeal is frivolous must be accompanied by citation to the opposing brief or the record below with clear argument as to why those citations establish that the appeal is frivolous. A party whose case has been challenged as frivolous is expected to respond or to request dismissal of the case. Motions for Sanctions. Motions for sanctions under this rule are filed in accordance with the requirements of Federal Rule of Appellate Procedure and Federal Circuit Rule 27. FEDERAL RULE OF APPELLATE PROCEDURE 39 Costs (a) Allocating Costs Among the Parties. The following rules apply to allocating taxable costs among the parties unless the law provides, the parties agree, or the court orders otherwise: (1) if an appeal is dismissed, costs are allocated against the appellant; (2) if a judgment is affirmed, costs are allocated against the appellant; Federal Circuit Rules of Practice (December 1, 2025) Page 163 (Return to Table of Contents) FEDERAL RULE OF APPELLATE PROCEDURE 39 (3) (4) if a judgment is reversed, costs are allocated against the appellee; if a judgment is affirmed in part, reversed in part, modified, or vacated, each party bears its own costs. (b) Reconsideration. Once the allocation of costs is established by the entry of judgment, a party may seek reconsideration of that allocation by filing a motion in the court of appeals within 14 days after the entry of judgment. But issuance of the mandate under Rule 41 must not be delayed awaiting a determination of the motion. The court of appeals retains jurisdiction to decide the motion after the made issues. (c) Costs Governed by Allocation Determination. The allocation of costs applies to both costs taxable in the court of appeals under Rule 39(e) and to costs taxable in district court under Rule 39(f). (d) Costs For and Against the United States. Costs for or against the United States, its agency, or officer will be allocated under Rule 39(a) only if authorized by law. (e) Costs on Appeal Taxable in the Court of Appeals. (1) Costs Taxable. The following costs on appeal are taxable in the court of appeals for the benefit of the party entitled to costs: (A) the production of necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f); the docketing fee; and (B) (C) a filing fee paid in the court of appeals. (2) Costs of Copies. Each court of appeals must, by local rule, set the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of Federal Circuit Rules of Practice (December 1, 2025) Page 164 (Return to Table of Contents) FEDERAL RULE OF APPELLATE PROCEDURE 39 copying. * (3) Bill of Costs: Objections; Insertion in Mandate. (A) A party who wants costs taxed in the court of appeals must - within 14 days after judgment is entered – file with the circuit clerk and serve an itemized and verified bill of those costs. (B) Objections must be filed within 14 days after the bill of costs is served, unless the court extends the time. (C) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must – upon the circuit clerk’s request— add the statement of costs, or any amendment of it, to the mandate. (f) Costs on Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs: (1) (2) (3) the preparation and transmission of the record; the reporter’s transcript, if needed to determine the appeal; premiums paid for a bond or other security to preserve rights pending appeal; and (4) the fee for filing the notice of appeal. *Fed. Cir. R. 39(c) outlines this court’s process for setting cost taxation rates. Federal Circuit Rules of Practice (December 1, 2025) Page 165 (Return to Table of Contents)